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_____________________
No. 12-1437_____________________
IN THE UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT
_____________________
RAYMOND WOOLLARD, et al.,
Plaintiffs-Appellees,
v.
DENIS GALLAGHER,et al.
,
Defendants-Appellants.
_____________________
On Appeal from the United States District Courtfor the District of Maryland
(Benson E. Legg, District Judge)
_____________________
OPPOSITION TO MOTION FOR STAY PENDING APPEAL_____________________
Cary Hansel Alan Gura
Joseph, Greenwald & Laake, P.A. Gura & Possessky, PLLC6404 Ivy Lane, Suite 400 101 N. Columbus St., Suite 405
Greenbelt, MD 20770 Alexandria, VA 22314301.220.2200/301.220.1214 703.835.9085/703.997.7665
July 31, 2012 Attorneys for Appellees
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TABLE OF CONTENTS
INTRODUCTION ......................................................................................... 1
THE PLAINTIFFS JOIN IN THE DEFENSE .......................................... 5
MOTION FOR EXTENSION OF PAGE LIMITS ................................... 5PROCEDURAL BACKGROUND .............................................................. 6
STATEMENT OF FACTS ........................................................................... 6
ANALYSIS ..................................................................................................... 7
I. Defendants Cannot Meet the Heavy Burden to qualify for a Stay. ....... 7
II. Defendants Cannot Establish A Strong ................................................. 7
Likelihood of Success on the Merits ........................................................... 7
A. The Issue is Whether the Government May Exercise Prior Restraint of aFundamental Right Absent Showing of a Good and Substantial Reason to
Exercise that Right. ................................................................................. 8
B. The Defense is Saddled with a High Burden. ................................. 8
C. The Defense Cannot Meet its Burden to Show a High Likelihood of Success
on the Merits. ......................................................................................... 10
D. Defendants Cannot Establish A Showing Of Irreparable Injury If The Stay
Were Denied. .......................................................................................... 28
E. Consideration of Any Potential Injury to Other Parties Does Not Favor
Granting A Stay. .................................................................................... 31
F. The Public Interest Does Not Weigh In Favor of a Stay.................. 32
CONCLUSION ............................................................................................ 35
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TABLE OF AUTHORITIES
Cases
Andrews v. State, 50 Tenn. 165 (1871) .................................................................... 16, 17
Bateman v.Perdue, No. 5:10-CV-265-H, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C.
Mar. 29, 2012): .................................................................................................... 29
Cayuga Indian Nation v. Vill. of Union Springs, 317 F. Supp. 2d 152 (N.D.N.Y. 2004)
.......................................................................................................................... 4, 10
District of Columbia v. Heller, 554 U.S. 570 (2008)..............................................passim
Doe v. Charleston Area Medical Ctr., 529 F.2d 638 (4th Cir. 1977) ............................ 34
Elrond v. Burns, 427 U.S. 347 (1976) ........................................................................... 33
English v. State, 35 Tex. 455 (1876) ........................................................................ 15, 16
Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011). ...................................................... 34, 37
Fife v. State, 31 Ark. 455 (1876) ................................................................................... 16
Giovani Carandola, Ltd. v. Bason, 147 F. Supp. 2d 383 (M.D.N.C. 2001) .................. 32
Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) ........................... 32, 34
Hague v. Committee for Indus. Org., 307 U.S. 496 (1937)........................................... 28
Hilton v. Braunskill, 481 U.S. 770, 776 (1987) ......................................................... 9, 11
Kunzv.New York, 340 U.S. 290 (1951) ........................................................................ 28
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) .......................................... 33
Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970). .............................................. 9, 11
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McDonald v. Chicago, 130 S. Ct. 3020 (2010). ..........................................20, 22, 28, 29
National Socialist Party of America v. Skokie, 432 U.S. 43 (1977) .............................. 22
Newsom v. Albemarle County Sch. Bd., 354 F.3d 249 (4th Cir. 2003) ............. 32, 34, 35
Nunn v. State, 1 Ga. 243 (1846) ..................................................................................... 17
People v. Yanna, No. 304293, 2012 Mich. App. LEXIS 1269 (Mich. App. June 26,
2012) .................................................................................................................... 30
Rex v.Knight, 90 Eng. Rep. 330 (K.B. 1686) ............................................................... 15
Ross v. Meese, 818 F.2d 1132 (4th Cir. 1997) ............................................................... 34
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) .......................................... 28
St. Agnes Hosp., Inc. v. Riddick, 751 F. Supp. 75 (D. Md. 1990) ................................. 12
State v. Chandler, 5 La. Ann. 489 (1850) ...................................................................... 17
State v. Reid, 1 Ala. 612 (1840) ..................................................................................... 17
United States v. Carter, 669 F.3d 411 (4th Cir. 2012) .................................................. 19
United States v. Chester, 628 F.3d 673 (4th Cir. 2010) ........................................... 20, 21
United States v. Garvin, Cr. No. 11-480-01, 2012 U.S. Dist. LEXIS 76540 (E.D. Pa.
May 31, 2012). ..................................................................................................... 30
United States v. Mahin, 668 F.3d 119 (4th Cir. 2012) ................................................... 19
United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010) ........................................... 20
United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) ................................... 19, 21
United States v. Moore, 666 F.3d 313 (4th Cir. 2012) .................................................. 19
United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc) .................................. 19
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United States v. Staten, 666 F.3d 154 (4th Cir. 2011) ................................................... 21
United States v. Weaver, No. 2:09-CR-00222, 2012 U.S. Dist. LEXIS 29613 (S.D.W.
Va. Mar. 7, 2012) ................................................................................................. 29
Virginia Petroleum Jobbers Assn v. FPC, 259 F.2d 921 (1958) .................................. 11
Washington Metropolitan Area Transit Com. v. Holiday Tours, Inc., 559 F.2d 841
(D.C. Cir. 1977) ................................................................................................... 11
Williford v. Armstrong World Industries, Inc., 715 F.2d 124 (4th Cir. 1983) ........... 4, 10
Wilson v. State, 33 Ark. 557 (1878)............................................................................... 16
Statutes
Md. Code Ann., Crim. Law 4-203 ................................................................................ 8
Md. Pub. Safety 5-307(b) ............................................................................................ 37
Other Authorities
1328 English Statute of Northampton............................................................................ 14
1689 English Bill of Rights ............................................................................................ 14
4 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 148
(1769) ................................................................................................................... 15
David Caplan, The Right of the Individual to Bear Arms: A RecentJudicial Trend, 4
DET. C. L. REV. 789, 795 (1982) ....................................................................... 15
Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-
AMERICAN RIGHT 104-05 (1994). .................................................................. 15
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Rules
Fed. R. Civ. Proc. 62(c) ................................................................................................... 9
Treatises
William Hawkins, 1 TREATISE OF THE PLEAS OF THE CROWN, ch. 63, 9
(1716) ................................................................................................................... 15
Constitutional Provisions
Second Amendment ................................................................................................passim
First Amendment .............................................................................................................. 6
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INTRODUCTION
A single provision of Marylands licensing scheme for the bearing of arms has
been found unconstitutional by the United States District Court for the District of
Maryland. This ruling is in keeping with recent rulings of the United States Supreme
Court and this Honorable Court, and is consistent with the findings of a growing
number of federal courts recognizing the Second Amendments application under these
circumstances. More importantly, the District Courts ruling is mandated by the
Second Amendment of the United States Constitution.
The ruling strikes a requirement that Marylanders demonstrate that they have a
good and substantial reason prior to the exercise of their constitutional right to bear
arms. All other licensing requirements remain in force, including, but not limited to, a
full background investigation conducted by the Maryland State Police, an interview by
State Police, a criminal background check, surrendering ones fingerprints, revealing
any relevant information about the applicants mental health, and filling a lengthy
application under oath.
In striking only a narrow portion of the statute, the ruling brings Maryland more
in line with the vast majority of other states in the union and the four other states in
this Circuit. However, even after the ruling, Maryland has one of the most restrictive
licensing regimes in the country.
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Despite the very narrow nature of the ruling, Maryland has applied for a stay
pending appeal. The stay should be denied for the same reasons a similar request was
denied by the District Court.
The merits of the States request must be viewed in the context of the heavy
burden the State must bear. The State must prove four factors, including a strong
likelihood of success on the merits, by a clear and convincing showing. This is,
indeed, a heavy burden. Cayuga Indian Nation v. Vill. of Union Springs, 317 F.
Supp. 2d 152, 155 (N.D.N.Y. 2004). The applicant for stay must make out a clear
case of hardship or inequity. Williford v. Armstrong World Industries, Inc., 715 F.2d
124, 127 (4th Cir. 1983) (citations omitted).
The Plaintiffs bear no burden here at all. If the matter is a close call, in
equipoise, or even if the scales seemed tipped slightly toward the defense, the motion
should be denied. A stay is appropriate only if the defense carries its heavy burden to
make a clear and convincing showing on all four elements, including a strong
likelihood of success on the merits.
As the District Court realized, it is the Plaintiffs and not the Defendants who
enjoy the advantage of a high likelihood of success. The other three factors, although
somewhat ancillary in this case, also weigh heavily in favor of the Plaintiffs. As such,
the stay should be denied.
First, there is no harm to the Defendants in granting a stay let alone the
irreparable harm the defense bears the burden of proving. Defendants already enjoy
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very broad legislative authority not challenged by Plaintiffs to restrict handgun
carry permits as to time, place and manner. Nothing in the ruling below restrains the
legislature from enacting new laws if it wishes. The States failure to exercise the
authority it already possesses, or enact new laws, does not excuse the ongoing
deprivation of fundamental constitutional rights.
The ruling is simple to implement. The entire licensing regime is in place and
can remain completely unchanged, with the sole exception that no one should be
denied for lack of a good and substantial reason to exercise their constitutional
rights. There is no real cost to the State, and no significant administrative burden in
making the change; nor would either be sufficient grounds to continue to violate the
Constitution.
Any permits issued under the ruling would be easy to recall in the unlikely event
that this Honorable Court should rule against application of the Second Amendment.
Maryland law already requires that any permits be surrendered immediately upon the
demand of the authorities. Were Maryland ultimately permitted to decide who has a
good and substantial reason to exercise Second Amendment rights, then authorities
could easily use existing law, together with the extensive biographical information
provided by each applicant, to demand return of any permits issued under the ruling.
Arguments based on the supposed general social ills Maryland claims to be
associated with firearms have been rejected by the United States Supreme Court.
Moreover, the more persuasive research stands staunchly in favor of the right to keep
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and bear arms. However, the Court need not examine the thousands of pages of social
science on the issue.
Simply put, this case is not a constitutional convention. Our roles are not to
debate the wisdom of the Second Amendment. The policy decisions embodied therein
were made at the time of its enactment. The Court should pay no more heed to
hysterical claims of gun violence than countenance arguments about the supposed ill
effect of permitting speech protected by the First Amendment.
The Second Amendment is part of the fabric of our constitution and our society.
Whether Maryland might prefer to write it out of the constitution based on faulty
pseudo-social science is completely irrelevant.
In stark contrast to the States inability to demonstrate irreparable harm absent a
stay, the Plaintiffs will continue to be denied their right to bear arms if a stay is
granted. The Supreme Court has correctly held that the denial of a constitutional right
is, in and of itself and without more, an irreparable injury. Worse still, individuals
would be denied the fundamental right to self defense by a stay a right which
implicates a citizens personal safety a matter far more urgent than the theoretical ills
cited by the State.
The sole question in the case is whether a citizen should bear the burden of
demonstrating a good and substantial reason to the government before the citizen is
permitted to exercise a fundamental right. The answer is no. A right which the
government claims the discretion to deny at its whim is no right at all, but a mere
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privilege. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (A
constitutional guarantee subject to futureassessments of its usefulness is no
constitutional guarantee at all). Instead, our Constitution secures the rightto keep
and bear arms. U.S. Const. Amend. II (emphasis added). Simply put, the Plaintiffs
are highly likely to prevail on the merits.
Chief among the reasons to deny Marylands request for a stay is the simple fact
that the provision at issue violates the Constitution of the United States of America.
There is no greater legal duty than that owed by a democratic government to its
citizens. When the original social compact between all of us, as citizens, and our
government is violated, swift judicial intervention is appropriate. This ruling - ending
government encroachment upon our constitutional rights - is not the proper subject of a
stay. No state is entitled to a reprieve to continue violating the rights of its citizens.
As the District Court so eloquently observed, [a] citizen may not be required to
offer a good and substantial reason why he should be permitted to exercise his rights.
The rights existence is all the reason he needs. J.A. 156.
For these and the reasons detailed below, the stay should be denied.
PLAINTIFFS JOIN DEFENSES MOTION FOR EXTENSION OF PAGE
LIMITS
As a preliminary procedural matter, the Plaintiffs join in the Defendants motion
to extend the pages limits and seek a like extension as reflected herein.
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PROCEDURAL BACKGROUND
Plaintiffs Raymond Woollard and the Second Amendment Foundation
(Plaintiffs) adopt the procedural history found in their Brief on the merits.
STATEMENT OF FACTS
Plaintiffs hereby adopt the recitation of facts contained in their Brief on the
merits, adding only the following in specific response to matters raised in the States
motion:
In an attempt to make its prohibition seem more constitutionally palatable, the
State suggests multiple times in its brief that an individual may wear or carry a
handgun in connection with a limited list of activities and on property owned by the
individual or where the individual operates a business. These restrictions do not
permit the wear or carry of handguns to and from the stated activities or locations as
handguns being transported in a motor vehicle, even for these purposes, must be stored
in a separate case and unloaded. Md. Code Ann., Crim. Law 4-203.
Although Maryland code permits no exceptions to the good and substantial
requirement, in implementing this undefined standard, the State Police have deemed
certain categories of persons to presumptively have a sufficient reason to bear arms.
As the law is applied by the Maryland State Police, this limited subset of applicants
need not demonstrate a good and substantial reason. Such exempt individuals
include judges, current and former police officers, public defenders and prosecutors.
J.A. 58.
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ANALYSIS
I. DEFENDANTS CANNOT MEET THE HEAVY BURDEN TO
QUALIFY FOR A STAY.
Defendants cannot satisfy any of the four prerequisites of a stay, let alone a
compelling combination of these factors. Consideration of a motion for stay under
Fed. R. Civ. Proc. 62(c) requires the Court to balance (1) whether the stay applicant
has made a strong showing that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4) where the
public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776 (1987);Long v. Robinson,
432 F.2d 977, 979 (4th Cir. 1970).
The party seeking a stay must justify it by clear and convincing circumstances
outweighing potential harm to the party against whom it is operative. Defendants, as
movants, have the heavy burden of establishing that the aforementioned factors weigh
in favor of a stay. Cayuga Indian Nation v. Vill. of Union Springs, 317 F. Supp. 2d
152, 155 (N.D.N.Y. 2004). The applicant for stay must make out a clear case of
hardship or inequity in being required to go forward, if there is even a fair possibility
that the stay for which he prays will work damage to someone else. Williford v.
Armstrong World Industries, Inc., 715 F.2d 124, 127 (4th Cir. 1983) (citations
omitted).
II. DEFENDANTS CANNOT ESTABLISH A STRONG
LIKELIHOOD OF SUCCESS ON THE MERITS
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A. THE ISSUE IS WHETHER THE GOVERNMENT MAY EXERCISEPRIOR RESTRAINT OF A FUNDAMENTAL RIGHT ABSENT
SHOWING OF A GOOD AND SUBSTANTIAL REASON TOEXERCISE THAT RIGHT.
The defense opens its argument by seriously misstating the primary issue before
the Court. The suggestion is made, at page 8 of the defense brief, that this Honorable
Court is asked to decide whether the Second Amendment secures the right to bear arms
for an individual who cannot demonstrate a reasonable self-defense or other
justification. Whether or not an individual can satisfy the government that he or she
has substantial justification to exercise a constitutional right falls well short of the
point. The issue in this case is whether the government can make such a demand of
individuals seeking to exercise their rights in the first instance.
This fundamental distinction reveals the fallacy in the Defendants approach to
the entire issue. The defense starts from the premise that the Second Amendment does
not protect the right to bear arms generally in public (even allowing for reasonable
regulation of time, place and manner). All of the defense argument thereafter flows
from this fundamental fallacy.
Mistaken as it is in its conclusion, the defense strategy is understandable in that
it is the only real avenue available. Unless the defense meets its heavy burden of
establishing a high likelihood of success on the merits which manifestly it cannot -
the requested stay should be denied.
B. THE DEFENSE IS SADDLED WITH A HIGH BURDEN.
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A stay applicant must make a strong showing that he is likely to succeed on the
merits. Hilton, 481 U.S. at 776;Long, 432 F.2d at 979 (likely prevail). Without
such a substantial indication of probable success, there would be no justification for
the courts intrusion into the ordinary processes of administration and judicial review.
Washington Metro. Area Transit Com. v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.
Cir. 1977) (quoting Virginia Petroleum Jobbers Assn v. FPC, 259 F.2d 921, 925
(1958)).
It is critical to recognize the full implications of this standard. As the movant,
the State bears the full burden of persuasion here. Before a stay can be granted, the
State must demonstrate a high likelihood that it will succeed.
In contrast, the Plaintiffs have no burden at all. The Plaintiffs need not make
any showing, much less of a high likelihood of success. Hence, if the matter is a close
or difficult choice (as the State suggests at times), then the relief sought by the State
should be denied.
A related theme in the defense argument is that the contours of the Second
Amendment are unsettled. Variations on this theme include arguments thatHellerdid
not go as far as the district court in this case and that there is purportedly no decisive
ruling from the Supreme Court on the point at issue here. Once again, such arguments
fail to meet the high burden the defense must satisfy.
Whether or not the issue has yet been fully and precisely resolved by the
Supreme Court has nothing to do with demonstrating, as the defense must, a high
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person. It is absurd to suggest, as the defense must, that ones life and physical safety
are somehow less important in public than at home.
Certainly, many individual rights find their zenith at home, but the very nature
of the right to self defense and the interest in ones physical well being which it
implicates demonstrate conclusively that the right to self defense extends beyond the
home.
This simple logic is nothing new it is enshrined in the Constitution itself. The
Framers offered equal protection to the right to keep and bear arms. Indeed, the
amendment uses the conjunctive and makes reference to both the keeping and bearing
of arms as a single, right. Viewed in the constitutional landscape established by
Heller, this language conclusively demonstrates that possession of firearms in the
home (keeping arms) and the wearing or carrying of same (bearing arms) are coequal
rights.
The Second Amendment protects the right the bear arms, but all of the defense
arguments flow from the proposition that it does not. As the defense position is
completely undermined by this fatal flaw, the defense has not established any
likelihood of success on the merits let alone a high likelihood and the present
motion should be denied.
The issue is this simple. To obscure the point, the defense sought an expansion
of its page limits and offered dozens of pages of off-base analysis. Plaintiffs are
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compelled to respond in detail, but only after cautioning that the forest is much harder
to see if the Court allows itself to be lost in the trees.
i. The Historical Regulations Cited by the Defense Do
Nothing to Meet the Heavy Defense Burden.
The Defendants' citations to historical regulation are unavailing. First, the
defense cites the 1328 English Statute of Northampton and the 1689 English Bill of
Rights. Neither has any bearing on the 1791 adoption of the Second Amendment or its
application today. In fact, the Bill of Rights was adopted in large part as a reaction to
English tyranny, so the concept that it should be interpreted by reference to English
law of more than a hundred years prior would be as abhorrent to the founders as we
should find it today.
Moreover, a long line of scholars have made it clear that the Statute of
Northampton limited to prohibit the carrying of arms only with evil intent, in order to
preserve the common law principle of allowing Gentlemen to ride armed for their
Security. David Caplan, The Right of the Individual to Bear Arms: A RecentJudicial
Trend, 4 DET. C. L. REV. 789, 795 (1982) (citingRex v.Knight, 90 Eng. Rep. 330
(K.B. 1686)); see also, 4 William Blackstone, COMMENTARIES ON THE LAWS
OF ENGLAND 148 (1769). [N]o wearing of Arms is within the meaning of this
Statute, unless it be accompanied with such circumstances as are apt to terrify the
People; from whence it seems clearly to follow, that Persons of Quality are in no
Danger of Offending against this Statute by wearing common Weapons . . . for their
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Ornament or Defence. William Hawkins, 1 TREATISE OF THE PLEAS OF THE
CROWN, ch. 63, 9 (1716);see Joyce Lee Malcolm, TO KEEP AND BEAR ARMS:
THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 104-05 (1994). Thus, even
what little facially irrelevant authority the defense can muster is readily answered.
Next, the defense cites a few early American state laws governing the carry of
firearms, including some appearing to require showings analogous to the good and
substantial reason at issue here. In doing so, the defense relies on early state court
cases interpreting these laws. Yet, the defense cannot cite a single instance in which
any of these State laws was tested against the United States Constitution in a federal
court.
Moreover, when the early cases cited by the defense are examined closely, they
provide far less support and often completely undermine the defense position. For
instance, the defense citesEnglish v. State, 35 Tex. 455 (1876) for the proposition that
early decisions allegedly upheld statutes that similarly prohibited the carry of
concealable weapons, including handguns. Defense Motion at 15. To the contrary,
English found that the Second Amendment protected holster pistols and side arms.
35 Tex. at 476.
Likewise, the defense citation toFife v. State, 31 Ark. 455, 460-61 (1876) is
unavailing becauseFife excluded army and navy repeaters from the definition of
prohibited pistol. Indeed,Fife was distinguished on this point in a case involving the
carrying of an army pistol. If cowardly and dishonorable men sometimes shoot
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unarmed men with army pistols or guns, the evil must be prevented by the penitentiary
and gallows, and not by a general deprivation of a constitutional privilege. Wilson v.
State, 33 Ark. 557, 560 (1878).
Next, the State citesAndrews v. State, 50 Tenn. 165, 188 (1871), wherein the
court held that the carry prohibition fails as to this weapon.
Furthermore, the Plaintiffs could just as easily cite early opinions in their favor.
For instance, in 1840, Alabamas high court explained:
We do not desire to be understood as maintaining, that in regulating themanner of bearing arms, the authority of the Legislature has no other limit
than its own discretion. A statute which, under the pretence of regulating,
amounts to a destruction of the right, or which requires arms to be so
borne as to render them wholly useless for the purpose of defense, wouldbe clearly unconstitutional. But a law which . . . prohibits the wearing of
certain weapons in such a manner as is calculated to exert an unhappyinfluence upon the moral feelings of the wearer, by making him lessregardful of the personal security of others, does not come in collision
with the Constitution.
State v. Reid, 1 Ala. 612, 616-17 (1840).
Likewise, Georgias Supreme Court followedReid, quashing an indictment for
publicly carrying a pistol that failed to specify how the gun was carried: so far as the
act . . . seeks to suppress the practice of carrying certain weaponssecretly, that it is
valid, inasmuch as it does not deprive the citizen of his naturalright of self-defence, or
of his constitutional right to keep and bear arms. But that so much of it, as contains a
prohibition against bearing arms openly, is in conflict with the Constitution, and void.
Nunn v. State, 1 Ga. 243, 251 (1846) (emphasis original).
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In 1871, Tennessees Supreme Court held unconstitutional the application of a
weapons carrying ban to a man carrying a revolver, declaring:
If the Legislature think proper, they may by a proper law regulate the
carrying of this weapon publicly, or abroad, in such a manner as may bedeemed most conducive to the public peace, and the protection and safetyof the community from lawless violence. We only hold that, as to this
weapon, the prohibition is too broad to be sustained.
Andrews v. State, 50 Tenn. 165, 187-88 (1871).
Finally, in 1850,the Louisiana Supreme Court held that citizens had a right to
carryarms openly: This is the right guaranteed by the Constitution of theUnited
States, and which is calculated to incite men to a manly andnoble defence of
themselves, if necessary, and of their country,without any tendency to secret
advantages and unmanlyassassinations. State v. Chandler, 5 La. Ann. 489, 490
(1850).
This historical backdrop does nothing to advance the notion that the defense has
a high likelihood of success on the merits.
ii. The Heller Decision Does Not Support the Notion that the
Defense has a High Likelihood of success on the Merits.
The defense treatment ofHellerignores many of the key teachings of the case
and takes much of the Courts language out of critical context. However, even if
accepted wholesale without the rebuttal below, the best the defense can do is to suggest
that, at least to some extent, the passages on which [Judge Niemeyer of this Court and
the undersigned] rely do not support Plaintiffs claims. Defense Motion at 16. The
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defense goes on to argue thatHellerdid not explicitly recognize the right to bear arms
outside the home.
Even if to at least some extentHellerdid not support the Plaintiffs claims,
and even if theHellerholding were limited to the home, nether assertion would
demonstrate a high likelihood that the defense will succeed on the merits in this case.
TheHellerCourt was not squarely faced with the question of carry outside of
the home. Hence, to whatever extent that issue was not reached inHeller, the case
would be irrelevant here. Even if the defense were to establish the irrelevancy of
Heller, this does not demonstrate a high likelihood that the defense will succeed on the
merits only that the merits would be an open question.
Thus, even at unchallenged face value, the defense position fails. This is to say
nothing of what a critical and close reading ofHellerand other recent precedent
actually reveals.
This Courts suggestions that the Second Amendment might extend
beyond the home, United States v. Masciandaro, 638 F.3d 458, 475 (4th Cir. 2011);
United States v. Moore, 666 F.3d 313, 320 *n.7 (4th 2012), and that the Supreme Court
offered no holding on the issue, United States v. Carter, 669 F.3d 411, 415 (4th Cir.
2012); United States v. Mahin, 668 F.3d 119,124 (4th Cir. 2012), at least exclude the
arguments thatHellerpositively limited the right to the home. On this point, other
circuits agree. [T]he Second Amendment creates individual rights, one of which is
keeping operable handguns at home for self-defense. What other entitlements the
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Second Amendment creates . . . were left open. United States v. Skoien, 614 F.3d
638, 640 (7th Cir. 2010) (en banc).
In fact, the Supreme Court explicitly noted that, since this case represents this
Courts first in-depth examination of the Second Amendment, one should not expect it
to clarify the entire field . . . .Id. at 635.
However, the Court did adequately cover the field for the present purposes. For
instance, the Court held that, [a]t the time of the founding, as now, to bear meant to
carry.Heller, 554 U.S. at 584. The Court thus repeatedly referred to the Second
Amendment right, protecting only individuals liberty to keep and carry arms.Heller,
554 U.S. at 604 (emphasis added);see also id. at 626. Moreover, inHeller, the
Supreme Court held that the Second Amendment protects the right to keep and bear
arms for the purpose of self-defense. McDonald v. Chicago, 130 S. Ct. 3020, 3020
(2010).
In tying the right to keep and bear arms to the right of self defense, the Supreme
Court more than presaged its likely holding in the present matter. Hellerconcluded
that the Second Amendment codified a pre-existing individual right to possess and
carry weapons in case of confrontation. United States v. Marzzarella, 614 F.3d
85,90 (3rd Cir. 2010) (quotingHeller, 554 U.S. at 592). [T]he core right identified in
Heller[is] the right of a law-abiding, responsible citizen to possess and carry a weapon
for self-defense. United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010)
(emphasis added).
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There is no reason whatsoever to suggest (as the defense must) that the right to
self defense would exist only in the home. Ones life and personal safety are equally
important no matter where the individual is located and the corresponding right to self
defense thus travels with the person rather than being shed at the doorway of the home.
Finally, in a last-ditch, one-sentence argument that seems to admit the futility of
its prior positions, the State avers that, A Second Amendment right extending, in
some form, to self defense outside the home does not imply a right to wear and carry in
public a loaded, readily-concealable handgun. But, of course, it does. The right to
bear arms outside of the home for self defense certainly encompasses the carrying of a
loaded and concealable handgun as this is precisely the weapon designed for such
purposes. Moreover, the right to self defense requires that the gun be loaded.
Presumably, the State here refers to the legality of carrying long arms, but fails
to recognize that the same argument about long guns in the home was rejected in
Heller. The impracticality of using long guns to defend oneself at home was deemed a
constitutionally insufficient substitute for handguns inHeller. Given this ruling, it
would seem a foregone conclusion that the impracticality of carrying long guns in
public will not pass constitutional muster.
iii. The State Fails to Show a High Likelihood that the Good
and Substantial Requirement Can Pass any Level of
Constitutional Scrutiny.
InMasciandro, the Court determined that immediate scrutiny is the proper
standard of review for issues related to the Second Amendment. See 638 F.3d at 470.
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Under immediate scrutiny, the government bears the burden of establishing a
reasonable fit between [the challenged statute] and a substantive governmental
objective. United States v. Staten, 666 F.3d 154, 161 (4th Cir. 2011) (quoting
Chester, 628 F.3d at 683).
The defense seeks to meet its burden here through citation to purported
statistical evidence closely intertwined with blatant fear mongering (including constant
references to highly lethal hand guns). Although the Plaintiffs will respond to
demonstrate that they actually have the better of any statistical argument, it is
important to first reiterate that the Supreme Court has repeatedly warned against this
type of analysis:
Justice Breyer is incorrect that incorporation will require judges to assess thecosts and benefits of firearms restrictions and thus to make difficult empirical
judgments in an area in which they lack expertise. As we have noted, while his
opinion inHellerrecommended an interest-balancing test, the Court specifically
rejected that suggestion. SeeMcDonald, 130 S. Ct. at 3046. "The veryenumeration of the right takes out of the hands of government--even the ThirdBranch of Government--the power to decide on a case-by-case basis whether the
right is really worth insisting upon."Heller, 554 U.S. at 634.
McDonald v. Chicago, 130 S. Ct. 3020, 3050 (2010). Along the same lines, the
McDonaldCourt also stated as follows:
[I]ncorporation of the Second Amendment right will to some extent limit thelegislative freedom of the States, but this is always true when a Bill of Rights
provision is incorporated. Incorporation always restricts experimentation and
local variations, but that has not stopped the Court from incorporating virtuallyevery other provision of the Bill of Rights. "[T]he enshrinement of constitutional
rights necessarily takes certain policy choices off the table."Heller, 554 U.S., at636. This conclusion is no more remarkable with respect to the Second
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Amendment than it is with respect to all the other limitations on state powerfound in the Constitution.
McDonald v. Chicago, 130 S. Ct. 3020, 3050 (2010). McDonaldaccurately echoes the
HellerCourts warnings against the defense approach:
We know of no other enumerated constitutional right whose core protection has
been subjected to a freestanding "interest-balancing" approach. The veryenumeration of the right takes out of the hands of government--even the Third
Branch of Government--the power to decide on a case-by-case basis whether theright is really worth insisting upon. A constitutional guarantee subject to futurejudges' assessments of its usefulness is no constitutional guarantee at all.
Constitutional rights are enshrined with the scope they were understood to have
when the people adopted them, whether or not future legislatures or (yes) evenfuture judges think that scope too broad. We would not apply an "interest-balancing" approach to the prohibition of a peaceful neo-Nazi march through
Skokie. SeeNational Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L. Ed. 2d 96 (1977) (per curiam). The First Amendment contains
the freedom-of-speech guarantee that the people ratified, which includedexceptions for obscenity, libel, and disclosure of state secrets, but not for theexpression of extremely unpopular and wrong-headed views. The Second
Amendment is no different. Like the First, it is the very product of an interest
balancing by the people--which Justice Breyer would now conduct for them
anew. And whatever else it leaves to future evaluation, it surely elevates aboveall other interests the right of law-abiding, responsible citizens to use arms in
defense of hearth and home.
District of Columbia v. Heller, 554 U.S. 570, 634-635 (2008).
Hence, although the Plaintiffs are forced by the defense argument to respond in
kind, the entire war of statistics and purported consequences is inappropriate. Nothing
about the anecdotal evidence cited by the defense (or even proper empirical evidence if
they had any) modifies the rights long enshrined in the Constitution. Nevertheless,
even if the ebb and flow of current statistics were permitted to define the contours of a
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constitutional right, the Plaintiffs would have the better of the argument for the reasons
which follow.
Defendants claim that the purpose of the current permit statutes good-and-
substantial reason requirement is to serve the States compelling interest in protecting
public safety and reducing handgun violence. Defense Motion 18-19. In support,
Defendants argue that the good and substantial requirement reduces handgun
violence and protects police officers, and that it prevents individuals from using
handguns to commit crimes. Id. at 20-22. But Defendants offer no empirical support
for these assertions they, instead, rest on speculation and belief of a few of state
officials. Without such data, Defendants claims have no merit much less sufficient
merit to meet the high burden of demonstrating a strong likelihood of success on the
merits.
What little data the defense does cite does nothing to support its position. First,
in the same paragraph citing crime as the need for the challenged requirement, the
defense admits that the most recent statistics show overall violent crime and homicide
in Maryland at the lowest levels since record keeping began.
Next, the State cites statistics suggesting that handguns are used more often in
crimes than long guns. This statistic, standing alone, is meaningless. The State offers
no evidence that the good and substantial requirement would affect these statistics
one way or the other. The State offers no empirical evidence of a causal link between
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the issuance of permits to law-abiding citizens and an increase or decrease in gun
crime.
In fact, both common sense and empirical evidence suggest that striking the
provision at issue here would not increase gun violence. First, those seeking permits
must undergo extensive background checks and any criminal applicants are denied as
part of this process.
Second, and not surprisingly, permitees are statistically far less likely to commit
gun crimes. For example, Michigan issued 87,637 permits for the year ending June 30,
2011. In that time frame, it revoked only 466 permits. Concealed PistolLicensure,
Annual Report, http://www.michigan.gov/ documents/msp/2011_CPL_Report_
376632_7.pdf (last visited July 27, 2012).
North Carolina has revoked only 1,203 permits out of 228,072, half of one
percent, in over 15 years.N.C. Concealed Handgun Permit Statistics byCounty,
http://www.ncdoj.gov/CHPStats.aspx (last visited July 27, 2012). In 2011, Tennessee
issued 94,975 handgun carry permits, and revoked just 97. Tenn. Handgun Carry
Permit Statistics, http://www.tn.gov/safety/stats/DL_
Handgun/Handgun/HandgunReport2011Full.pdf (last visited July 27, 2012).
Texas compiles detailed information tracking the proclivity of handgun carry
license permit holders to commit crimes. In 2011, of 63,679 serious criminal
convictions in Texas, only 1200.1884%could be attributed to individuals licensed
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to carry handguns, though not all such crimes necessarily utilized guns, or used them
in public settings. http://www.txdps.state.tx.us/RSD/CHL/Reports/ConvictionRates
Report 2011.pdf (last visited July 27, 2012).
Perhaps the most comprehensive data comes from Florida, which reports having
issued 2,227,360 handgun carry licenses since 1987. Concealed Weapon or Firearm
License Report, http://licgweb.doacs. state.fl.us/stats/cw_monthly.pdf (last visited July
27, 2012). To date, Florida has only revoked 168 licenses.00754% for crimes
utilizing firearms. Id.
The defense cannot and does not cite similar data to support its position because
it is all but beyond dispute that the data show permitees to be law-abiding and
upstanding citizens. The closest the defense comes to any rebuttal on this point is the
Violence Policy Centers claim that there have been 276 non-suicide intentional
killings nationwide by permit holders since 2007. This figure fails to parse out how
many of these incidents were legally justified, carried out by police officers or
otherwise uninstructive. Setting that issue aside, this statistic underscores the
Plaintiffs point and offers no solace to the defense.
While many states do not publish the number of permit holders, available data
reflect that Florida, Pennsylvania and Texas alone have over 1.5 million permit
holders. With some form of permitting available in 49 states, it is safe to estimate the
number of permitees in the millions. 276 incidents in five years, out of millions of
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permit holders all across the country, is a miniscule percentage. This proves, once
again, that permit holders are law abiding citizens from whom we have nothing to fear.
Instead, the defense relies on the affidavits of a few State officials to suggest,
anecdotally, that in their opinions, the good and substantial requirement may
decrease the likelihood that basic confrontations turn deadly, decrease the availability
of firearms to criminals through robbery or theft, or limit the likelihood that victims of
violent crime will be killed. These suppositions should be afforded no weight as they
are the mere guesswork of officials of the very government which seeks to enforce this
unconstitutional provision. Ironically, these same officials are afforded the
opportunity to obtain a permit without showing a good and substantial reason.
To whatever extent these positions are permitted any weight, they are easily
debunked by resort to common sense. First, the empirical evidence from shall issue
states cited above is to the effect that crime by permitees even without a good and
substantial requirement is extraordinarily low. Second, the concerns about the
availability of firearms have nothing whatsoever to do with the standards for carrying
them. There is no evidence to suggest that if the entire gauntlet of requirements for a
permit is left in place, with the sole exception of the good and substantial
requirement, then the sheer number of guns will increase. Therefore, the States
concerns about the availability or prevalence of guns are misplaced.
The State next makes the chilling argument that the good and substantial
provision ought to remain in force to limit the number of permitees because lawful
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permitees are in danger of unwarranted violence or harassment inflicted by the police.
In other words, the State actually argues that our Second Amendment rights should
continue to be denied to avoid even greater constitutional transgressions by our
government. For example, in language specifically cited by the State from an affidavit
it offered, the Commissioner of the Baltimore Police Department states that, [i]n a
confrontation between a police officer and a criminal, an additional person bearing a
gun might cause confusion as to which side of the confrontation the person is onand
the potential for innocent victims, including the permit holder [to be injured]. J.A. 6
(cited by the defense in its motion at 22). The same affiant goes on to aver that,
[h]aving more legal carriers of handgunswould also force police officers who spot
someone carrying a handgun to choose between creating a potential disturbance by
upholstering their own weapon orapproaching the carrier without drawing their
weapon. J.A. 6. In its desperation, the State effectively threatens potential violence
and harassment by the police as grounds to deny citizens their constitutional rights.
Moreover, it is important to recall that if the convenience of law enforcement
officers were permitted to trump our constitutional rights, precious few would survive.
With this in mind, theMcDonaldCourt instructed as follows:
[T]here is intense disagreement on the question whether the privatepossession of guns in the home increases or decreases gun deaths and
injuries. The right to keep and bear arms, however, is not the onlyconstitutional right that has controversial public safety implications. All ofthe constitutional provisions that impose restrictions on law enforcement
and on the prosecution of crimes fall into the same category.
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McDonald, 130 S. Ct. at 3045 (citations omitted).
Indeed, the enshrinement of constitutional rights necessarily takes certain
policy choices off the table.Heller, 554 U.S. at 636. The Supreme Court has:
consistently condemned licensing systems which vest inan administrative official discretion to grant or withhold a permit upon
broad criteria unrelated to proper regulation of public places. . . . Thereare appropriate public remedies to protect the peace and order of the
community if appellants speeches should result in disorder or violence.
Kunzv.New York, 340 U.S. 290, 294 (1951); Shuttlesworth v. City of Birmingham,
394 U.S. 147,153 (1969). [U]ncontrolled official suppression of the privilege cannot
be made a substitute for the duty to maintain order in connection with the exercise of
the right.Hague v. Committee for Indus. Org., 307 U.S. 496, 516 (1937).
Next, the State cites a small number of District Court decisions upholding laws
similar to Marylands. These are of no moment here because, as the defense admits at
page 23, none of these challenges have yet been decided by federal appellate courts.
Moreover, the few cases cited by the defense are at odds withHeller,McDonald
and their progeny in district courts around the country. For instance, the Southern
District of West Virginia held that barring the provision of armed security to a
prohibited individual satisfied constitutional scrutiny, but rejected the claim that there
is no right to carry a gun for self-defense. [T]he Second Amendment, as historically
understood at the time of ratification, was not limited to the home. United States v.
Weaver, No. 2:09-CR-00222, 2012 U.S. Dist. LEXIS 29613, at *13 (S.D.W. Va. Mar.
7, 2012) (citation and footnote omitted).
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The Eastern District of North Carolina struck down that states laws forbidding
the carrying or transportation of firearms and ammunition during declared states of
emergency.Bateman v.Perdue, No. 5:10-CV-265-H, 2012 U.S. Dist. LEXIS 47336
(E.D.N.C. Mar. 29, 2012):
It cannot be seriously questioned that the emergency declaration laws atissue here burden conduct protected by the Second Amendment. Although
considerable uncertainty exists regarding the scope of the SecondAmendment right to keep and bear arms, it undoubtedly is not limited to
the confines of the home.[T]he Second Amendment right to keep andbear arms is not strictly limited to the home environment but extends in
some form to wherever those activities or needs occur.Id. at *10(citation omitted). Under the laws at issue here, citizens are prohibitedfrom engaging, outside their home, in any activities secured by the
Second Amendment. They may not carry defensive weapons outside thehome.
Id. at *10-*11. Likewise, The Second Amendment explicitly protects the right to
carry as well as the right to keep arms.People v. Yanna, No. 304293, 2012 Mich.
App. LEXIS 1269, at *11 (Mich. App. June 26, 2012).
The Eastern District of Pennsylvania recently denied a motion to suppress
introduction of a handgun into evidence, finding the defendant engaged in evasive
conduct supporting the polices reasonable suspicion of criminal activity. But it
rejected the claim that a report into the defendants possible carrying of a handgun
justified his stop, finding that, [a]s some individuals are legally permitted to carry
guns pursuant to the Second Amendment of the Constitution, a reasonable suspicion
that an individual is carrying a gun, without more, is not evidence of criminal activity
afoot. U.S. v. Garvin, 2012 U.S. Dist. LEXIS 76540, at *10 (E.D. Pa. May 31, 2012).
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D. DEFENDANTS CANNOT ESTABLISH A SHOWING
OF IRREPARABLE INJURY IF THE STAY WERE DENIED.
Defendants contend that they will suffer irreparable injuries in the absence of a
stay of the district courts ruling. Defendants offer three agreements in support of this
contention: (1) this ruling prevents Defendants from applying the good and
substantial reason requirement to future permit requests, (2) an injunction prohibiting
the enforcement of a statute presumptively constitutes an irreparable injury, and (3) the
denial of a stay would impose administrative burdens on the State. Defense Motion at
24 27. These arguments, stated without the fear-mongering language present in the
Defendants motion, clearly do not demonstrate a showing of irreparable harm.
First, Defendants argue that the inability of the State to impose the good and
substantial reason requirement on individuals seeking permits would irreparably
injure Defendants by causing them to lose an important tool to protect the people of
Maryland againsthandgun violence. Defense Motion at 25.
In weighing this claim, it is instructive to first determine the actual scope of the
injunctive relief. The injunction does not prevent the State from enforcing the overall
handgun permit licensing scheme. It does not prevent the State from denying permit
requests where the permit applicants are disqualified because of some particular trait,
such as a criminal conviction, a drug or alcohol addiction, or a history of exhibiting a
propensity for violence or instability. It does not prevent the State from undertaking
measures to reduce or prevent gun violence or to decrease the availability of guns to
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criminals. It does not prevent the State from requiring permit applicants to obtain
safety training as a prerequisite for permit eligibility. Instead, the injunction only
prevents the State from enforcing a single provision of its handgun permit scheme.
Importantly, Defendants fail to provide evidence showing that the non-
enforcement of the good and substantial reason requirement would significantly
increase the availability of handguns or lead to any of the other claimed ills. Instead,
Defendants arguments all presuppose an increase of handgun availability as a
consequence of the non-enforcement of the good and substantial reason requirement.
Much of Defendants argument purports to show a relationship between the
prevalence of firearms and other public safety issues, such as the occurrence of
handgun violence or the availability of firearms to criminals, yet a statistical
correlation between the enforcement of the good and substantial reason requirement
and the prevalence of firearms is conspicuously absent. This omission is critical when
one recalls that the burden of persuasion rests entirely with the defense.
Next, Defendants argue that there is a presumption of irreparable injury when a
State is enjoined from enforcing a statute. Defense Motion at 26. This argument
merely begs the question, as there can be no irreparable injury to the State in
preventing it from enforcing an unconstitutional statute. Indeed, the Fourth Circuit has
said that a state is in no way harmed by issuance of a preliminary injunction which
prevents the state from enforcing restrictions likely to be found unconstitutional. If
anything, the system is improved by such an injunction. Giovani Carandola, Ltd. v.
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Bason, 303 F.3d 507, 521 (4th Cir. 2002) (citing Giovani Carandola, Ltd. v. Bason,
147 F. Supp. 2d 383, 395 (M.D.N.C. 2001));see also, Newsom v. Albemarle County
Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (finding state agency in no way harmed
by issuance of a preliminary injunction which prevents it from enforcing a regulation,
which, on this record, is likely to be found unconstitutional.).
Conversely, the Supreme Court and the Fourth Circuit have made it abundantly
clear that constitutional violations can constituteper se irreparable injury to Plaintiffs
for the purpose of determining whether to grant injunctive relief. See, e.g., Elrond v.
Burns, 427 U.S. 347, 373 (1976) (noting [t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury);Legend
Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011) (finding violation of First
Amendment to be injury of the sort that could not be remedied absent an injunction).
Lastly, Defendants argue that the denial of a stay would impose administrative
burdens on the State and that those administrative burdens constitute irreparable injury.
Defense Motion at 27. Defendants suggest that there would be delays in permit
processing as a result of an increase of permit applications and that this delay may
prevent the permit applicants who have a demonstrable reason under current law to
wear and carry a handgun from being timely processed. Id.
Defendants do not provide any reason beyond mere speculation to believe that
there would be a large increase in permit applications as a result of the denial of a stay.
Defendants also argue that, if the stay were denied and they were to ultimately prevail
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on the merits, there would be significant administrative costs involved with the
revocation of permits for individuals who did not provide a good and substantial
reason for the permit. However, current Maryland law requires a permit holder to
return the permit upon written notice of revocation, and, as the district court suggested,
Defendants did not provide any reason to believe that this provision would not be
followed by permit holders.
E. CONSIDERATION OF ANY POTENTIAL INJURY TOOTHER PARTIES DOES NOT FAVOR GRANTING A STAY.
In contrast to the minimal administrative costs the State would assume should
the stay be denied, there would be serious burdens imposed on Plaintiffs Second
Amendment rights if the stay was granted. The Fourth Circuit has held that violations
of constitutional rights constituteper se irreparable injury. See, e.g., Ross v. Meese,
818 F.2d 1132, 1135 (4th Cir. 1997) (stating the denial of a constitutional right, if
denial is established, constitutes irreparable harm for purposes of equitable
jurisdiction); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 511 (4th Cir. 2002);
Doe v. Charleston Area Medical Ctr., 529 F.2d 638, 644 (4th Cir. 1977) (finding
"denial under color of law of the right to abort [a pregnancy], implicit in the right to be
let alone, constitutes irreparable injury");Newsom, 354 F.3d at 261.
As the district court recognized, irreparable injury resulting from the loss of a
Second Amendment right should be assumed for the same reason that irreparable harm
is assumed in the context of the First Amendment. Both rights protect similarly
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intangible and unquantifiable interests and infringement of th[ese] right[s] cannot be
compensated by damages. Ezell v. Chicago, 651 F.3d 684, 699 (7th Cir. 2011).
Every Marylander is currently subject to the unconstitutional regime at issue and the
great weight of so many fundamental rights denied weighs against a stay.
F. THE PUBLIC INTEREST DOES NOT WEIGH IN
FAVOR OF A STAY.
Defendants present three arguments in support of their contention that a
consideration of the public interest weighs in favor of a stay: (1) the good and
substantial reason requirement advances compelling government interests, (2) the
public interest is served by maintaining the status quo until the Supreme Court has had
the opportunity to determine the constitutional issues present in this case, and (3) a stay
would allow the Maryland General Assembly to consider changes to Maryland law to
mitigate any adverse public safety impact of the invalidation of the requirement.
Defense Motion at 29-30. However, [s]urely, upholding constitutional rights serves
the public interest. Newsom, 354 F.3d at 261.
In the proceedings below, the court directed the parties to file supplemental
briefs addressing how Marylands permit scheme, without the good and substantial
reason requirement, compares with other permit schemes and how gun violence in
Maryland compares to gun violence in other states with more liberal regulations.
Supp. App. 467. While Marylands licensing standards allows officials to exercise
near-unbridled discretion, thirty-seven other states require officials to issue carry
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licenses to applicants who meet objective standards.1 After reviewing what it
described as commendably thorough research on the subject, the district court found
that the evidence does not point strongly in any one direction and that it [could] not
say that a stay would demonstrably serve or disserve the States goal of preventing a
potential increase in handgun violence pending appeal. Supp. App. 467-68.
Once again, the defense argument that the public interest is served by
maintaining the status quo until the Supreme Court has had the opportunity to [pass on
these issues] merely begs the question. If the statute in unconstitutional, as has been
held, then there are no grounds for a stay,
Finally, no stay is required for the General Assembly to consider new
legislation. The Court has not enjoined the General Assembly. Nothing in the Courts
decision impedes Marylands ability to enact further, different restrictions on the right
to carry a gun, the constitutionality of which could only be evaluated if and when such
restrictions are actually enacted. The Courts decision relates only as to whether
1Ark. Code Ann. 5-73-309; Colo. Rev. Stat. Ann. 18-12-203(1); Conn. Gen. Stat. 29-
32b(b); Fla. Stat. Ann. 790.06(2); Ga. Code Ann. 16-11-129(d)(4); Idaho Code Ann. 18-
3302(1); Ind. Code Ann. 35- 47-2-3(e); Iowa Code Ann. 724.7(1); Kan. Stat. Ann. 75-7c03(a);
Ky. Rev. Stat. Ann. 237.110(4); La. Rev. Stat. Ann. 40:1379.3(A)(1); 25 Me. Rev. Stat. Ann.
2003(1); Mich. Comp. Laws Ann. 28.422(3); Minn. Stat. 624.714, subdiv. 2(b); Miss. Code Ann. 45-9-101(2); Mo. Ann. Stat. 571.101(1); Mont. Code Ann. 45-8-321(1); Neb. Rev. Stat. 69-
2430(3); Nev. Rev. Stat. Ann. 202.3657(2); N.H. Rev. Stat. Ann. 159.6(I); N.M. Stat. Ann. 29-
19-4(A); N.C. Gen. Stat. 14-415.11(b); N.D. Cent. Code 62.1-04-03(1); Ohio Rev. Code Ann. 2923.125(D)(1); 21 Okla. Stat. Ann. 1290.12(A)(12); Or. Rev. Stat. Ann. 166.291(1); 18 Pa.
Cons. Stat. Ann. 6109(e); R.I. Gen. Laws 11-47-11(a); S.C. Code Ann. 23-31-215(A); S.D.
Codified Laws 23-7-7; Tenn. Code Ann. 39-17-1351(b); Tex. Govt Code 411.177(a); UtahCode Ann. 53-5-704(1)(a); Va. Code Ann. 18.2-308(D); Wash. Rev. Code Ann. 9.41.070(1);
W. Va. Code Ann. 61-7-4(f); Wis. Stat. 175.60(2)(a).
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individuals must prove their entitlement, generally, to carry a gun; it holds nothing
with respect to how Maryland would otherwise regulate the exercise of this right.
Maryland has long opted to license the carrying of handguns, openly or
concealed. If Maryland authorities truly wish to require all handgun carry permit
holders to carry their handguns openly, Def. Br., 3/7/12, pp. 12-13, that option is not
foreclosed by the Courts opinion. Maryland law already allows Defendant Brown to
limit the scope of permits to open or concealed carry. Md. Pub. Safety 5-307(b).
Notably, the Seventh Circuit rejected a similar claim that individuals should
tolerate a Second Amendment violation because the government would be
inconvenienced in pursuing its option to re-regulate. Faced with the prospect of losing
its total ban on gun ranges, Chicago warned of a regulatory vacuum that would be
left between an injunction and subsequent regulatory efforts. The court dismissed the
concerns. [W]e note that [Chicago] faced a similar dilemma after the Supreme Court
decidedMcDonald. The sky did not fall. The City Council moved with dispatch and
enacted the Ordinance just four days later. Ezell, 651 F.3d at 711.
The decision was issued months ago and during the legislative session. To
whatever extent the Court deems it appropriate that the General Assembly be given the
chance to act, they were. Despite the opportunity, the General Assembly failed to step
into the fray, nor did the Attorney General or the Governor, whose representatives are
frequently in the legislature, request that they do so. As such, this should be no bar to
allowing the ruling to stand.
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Finally, neither our Constitution, our courts, nor our citizenry should tolerate the
sacrifice of constitutional rights to governmental convenience and administrative ease.
If we do, we sponsor the undoing of the sacred document and our constitutional
democracy itself.
CONCLUSION
For the reasons stated above, and aptly by the district court, no stay should be
granted.
___________/s/______________Cary Hansel Alan Gura
Joseph, Greenwald & Laake, P.A. Gura & Possessky, PLLC6404 Ivy Lane, Suite 400 101 N. Columbus St., Suite 405
Greenbelt, MD 20770 Alexandria, VA 22314301.220.2200/301.220.1214 703.835.9085/703.997.7665
July 31, 2012 Attorneys for Appellees
CERTIFICATE OF SERVICE
I hereby certify that. On this 31st day of July, 2012, I caused the forgoing to be
electronically filed with the Clerk of the Court pursuant to the relevant rules.
___________/s/______________
Cary Hansel
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